REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2025-058357
In the matter between:
SB GUARANTEE COMPANY (RF) PTY LTD APPLICANT / PLAINTIFF
AND
JUSTICE LAMLELA NGESE RESPONDENT/ DEFENDANT
CASE NO.: 2025-086043
In the matter between:
SB GUARANTEE COMPANY (RF) PTY LTD APPLICANT / PLAINTIFF
AND
VATASUTSUMA MZIMASI
MATHUNSI NGOBENI RESPONDENT/ DEFENDANT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 28 January 2026 E van der Schyff
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JUDGMENT
Van der Schyff J
[1] SB Guarantee Company (RF) Pty Ltd sought default judgment and an order
declaring immovable property specially executable against t wo debtors in the
unopposed motion court on 22 January 2026.
[2] It is common cause that the notice s required to be delivered to debtors in terms of
section 129 of the Nation al Credit Act 34 of 2005 (the NCA) were not delivered to
the domicilium addresses identified in the respective loan agreements. In both
matters, the section 129 notices were sent to an email address by certified email.
[3] In both cases, the debtors concluded a Home Loan Agreement with Standard Bank.
In addition, the debtors signed an Indemnity in favour of Standard Bank with SB
Guarantee Company (Rf) Pty Ltd (SB Guarantee) . Part A of the respective Home
Loan agreements contains, amongst others, the details of the respective debtor’s
chosen domicilium addresses. In both cases, physical addresses were designated
as the chosen domicilium address.
[4] The notices in terms of section 129 of the National Credit Act, were, however,
delivered to the respective debtors’ email addresses. Counsel submitted that the
debtors identified email addresses in the Indemnity agreements and thus consented
to the email addresses being used for delivering the section 129 notices. I disagree.
[5] Standard Bank is the credit provider, and SB Guarantee is the guarantor. Standard
Bank and SB Guarantee, although not separated at arm's length, are two different
legal entities. The debtors concluded separate agreements with each entity.
Standard Bank was clearly aware of its legal obligation , as a credit provider, to
deliver section 129 notices to the respective debtors during the pre -enforcement
stage. For unknown reasons , Standard Bank , in its own wisdom, decided not to
deliver these notices to the debtors’ chosen domicilium addresses but instead to
their email addresses.
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[6] If regard is had to the Regulations published in terms of the NCA1 and section 65 (1)
of the NCA, as well as the purpose of, and legal importance attached to a domicilium
address being identified, it is evident that the section 129 notice cannot be said to
have been delivered to the addresses chosen by the respective debtors.
[7] On a proper reading of section 129(1)(a) with sections 129(1)(b), 130(1) and 130(3)
of the NCA , it is clear that compliance with the requirements of section 129(1)(a)
prior to the actual debt enforcement is mandatory. Section 129(1)(a) obliges a credit
provider, before commencing legal proceedings to enforce a credit agreement, to
draw the default to the notice of the consumer in writing . The Constitutional Court
explained in Sebola and Another v Standard Bank of South Africa Ltd and Another
2012 (5) SA 142 (CC) that section 129(1)(a) has been described as a ‘gateway’ or
a ‘pre-litigation layer to the enforcement process.2 It precludes legal enforcement of
a debt before the credit provider has suggested to the consumer that he or she
explore non-litigious ways to purge the debt.3
[8] This is, however, not the end of the matter. Of particular importance to the matters
under discussion is the Constitutional Court’s observation that while section
129(1)(b) appears to prohibit the commencement of legal proceedings altogether
until the section 129 notice is delivered, section 130 clarifies that where action is
instituted without prior notice, the action is not void. 4 Section 130(4)(b)(i) and (ii)
provides that where the credit provider has not complied with the relevant provisions
of the NCA, the court must “adjourn the matter before it; and make an appropriate
order setting out the steps the credit provider must complete before the matter may
be resumed.” A failure to give notice does not render the proceedings a nullity, but
it requires an adjournment of proceedings to permit the credit provider to give notice
it requires an adjournment of proceedings to permit the credit provider to give notice
before the proceedings may resume.5
1 GN R489 in GG 28864 of 31 May 2006.
2 Sebola at para [45].
3 Sebola at para [46].
4 Sebola at para [53].
5 Benson and Another v Standard Bank of South Africa (Pty) Limited and Others 2019 (5) SA 152 (GJ) at
para [16].
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[9] A Full Court of this Division dealt with the question whether an application for default
judgment still needs to be adjourned if non -compliance with the NCA is cured prior
to the hearing.6 On the facts of the appeal before it, the appellants obtained actual
notice of their rights as required in terms of section 129. The court held that the
answer flows from section 130(4)(b)(ii) – “if there are no further steps that are
required of the credit provider, there can be no purpose served in adjourning the
proceedings. Further delay would serve no purpose”. The court elaborated:
‘[T]he non-compliance must be properly cured, and the credit receiver
must be given the statutory time to consider his or her position. But if
that is done between the time that the non -compliance is cured and
the time that the matter is heard in court, to req uire an adjournment
for its own sake has no point and is inconsistent with the scheme of
ss129 and 130.’
[10] In both matters before this court, the combined summons, which contained the
section 129 notice as an annexure, was served by affixing it to the outer door of the
chosen domicilium address. Non-compliance with the provision of section 129 was
thus cured. Had the defendants decided to challenge the fact that they received the
section 129 notice late and indicated their intention to exercise their rights, Standard
Bank would have been obliged to accept the debtors’ choice despite the summons
having been issued. Such a scenario would, arguably, also have left Standard Bank
accountable for legal costs that could have been avoided had the section 129 notice
been delivered at the domicilium address.
[11] I thus hold the view that , in the current factual scenarios, no further steps are
required by the credit provider. The section 129 notices were ultimately delivered at
the addresses chosen by the debtors. It would, in my mind, be nonsensical and
wasteful to require that the notices be delivered to the same addresses again.
wasteful to require that the notices be delivered to the same addresses again.
6 Benson and Another v Standard Bank of South Africa (Pty) Limited and Others 2019 (5) SA 152 (GJ) at
para 18.
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[12] In the matter under case number 2025-58357, the return of service of the Rule 46A
application indicates that the “NOTICE OF SET DOWN AND APPLICATION FOR
JUDGMENT IN TERMS OF RULE 46A” was served on Mr. Ngese personally.
[13] In the matter under case number 2025 -86043 the return of service reflects that a
“Notice of Set Down in terms of a Rule 46A Application” was served personally on
Mr. Ngobeni. The wording of the return of service casts doubt on whether the Rule
46A application, or only a notice of set down, was served . The Uniform Rules of
Court require that an application in terms of Rule 46A must be served personally on
a defendant. Due to the possibility that this may just be an example of a badly
phrased return of service, the plaintiff is provided with the opportunity to remedy the
situation if possible.
ORDER
In the result, the following order is granted:
1. Any costs levied in relation to sending the section 129 notices by email may
not be accounted to the debtors’ accounts;
2. In case number 2025-058357 the draft order marked ‘X” dated and signed by
me is made an order of court;
3. The matter in case number 2025-086043 stands down to the unopposed roll
before me on 9 February 2025 at 10h00. If an improved return of service is not
filed before the said date, the application will be removed from the roll.
______________________
E van der Schyff
Judge of the High Court
Delivered: This judgment is handed down electronically by uploading it to the electronic file of
this matter on CaseLines. In the event that there is a discrepancy between the date the judgment
is signed and the date it is uploaded to CaseLines, the date the judgment is uploaded to
CaseLines is deemed to be the date that the judgment is handed down.
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For the plaintiff/applicant: Adv. J. Themane
Instructed by: Velile Tinto & Associates Inc.
Date of the hearing: 22 January 2026
Date of judgment: 28 January 2026